Anti Wikileaks Legislation Introduced in House and Senate; House Judiciary Committee Holds Hearing

Responding to the recent dissemination of thousands of confidential State Department cables and documents by Wikileaks, legislators in both Houses of Congress quickly introduced legislation aimed at preventing a similar release from happening again. Senators Lieberman (I-CT), Ensign (R-NV), and Brown (R-MA), and Representative King (R-NY) introduced the SHIELD Act (Securing Human Intelligence and Enforcing Lawful Dissemination) which would amend the 1917 Espionage Act to make it a federal crime for anyone to publish the name of a U.S. intelligence source or the procedures and methods employed to collect “human intelligence.” The legislation was followed shortly by a hearing in the House Judiciary Committee.

As was highlighted on several occasions during the House hearing, the bill poses some threat to free speech, and consequently is of concern for publishers. As then Chairman Conyers (D-MI) noted in his opening statement, “Prosecuting Wikileaks would raise the most fundamental questions about freedom of speech, about who is a journalist, and about what the public can know about the actions of its own government.” As leaking classified information is already considered a crime, the burden of this bill seems to be on publishers. As panelist Geoffrey Stone noted, “it would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked.”

Though the 111th session concluded without the bills advancing, we have every reason to believe that the bills will be reintroduced in the 112th Congress, and anticipate that they will be active early in the year.